Employment

Temporary/Nonimmigrant Visas

Permanent Residence

TEMPORARY/NONIMMIGRANT VISAS

The H-1B visa category applies to persons coming to the United States temporarily to engage in a specialty occupation.

Specialty occupations require at least a bachelor's degree in a specific area of specialty.

The prospective employee must have attained the level of education and specialty (or the equivalent through a combination of relevant work experience and education) required for performing the occupation.

The Employer must obtain an certified Labor Condition application from the Department of Labor

H-1B visas are valid up to three years and can be extended for a period of another three years, not to exceed six years (unless the exception of the American Competitiveness in the Twenty-First Century Act applies).

The H-1B category has an annual numerical limit “cap” of 65,000 visas each fiscal year. 20,000 of these visas are allocated for applicants with a master degree.

U.S. Companies may utilize the H-2B category to employ foreign nationals in nonagricultural positions.

The employer must be able to show that qualified U.S. workers are unavailable for the position and that the employer’s need for the position and the foreign national’s services is temporary.

An employer’s need is considered temporary if it is:

a one-time occurrence

a seasonal need

a peak-load need; or

an intermittent need.

The employer must also demonstrate that there are no qualified U.S. workers who are willing and available to do the temporary work and that the employment of H-2B workers will not adversely affect the wages and working conditions of similarly employed U.S. workers.

Spouses and unmarried children of H-2A and H-2B holders may obtain H-4 status.

Applies to Australian Nationals seeking to enter the United States temporarily to perform services in a specialty occupation.

Specialty occupations require at least a bachelor's degree in a specific area of specialty.

The prospective employee must have attained the level of education and specialty (or the equivalent through a combination of relevant work experience and education) required for performing the occupation.

J-1 – Exchange Visitors - foreign nationals who intend to participate in an approved program for the purpose of teaching, instructing or lecturing, studying, observing, conducting research, consulting, demonstrating special skills, receiving training, or to receive graduate medical education or training.

Spouses and unmarried children of J-1 holders may obtain J-2 status.

J-1 Waivers – Current or past J-1 visa holders maybe subject to the two-year home-country physical presence requirement, also known as the foreign residence requirement.

Foreign nationals subject to the J-1 two-year requirement are required to return to their home country for a cumulative total period of at least two years. Although these individuals are not prohibited from traveling to the U.S., they are not permitted to do any of the following until the two- year requirement is satisfied:

Change Status while in the U.S. to the H or L nonimmigrant categories.

Adjust Status while in the U.S. to immigrant visa/lawful permanent resident status

Receive an immigrant visa at a U.S. embassy or consulate; or

Receive a nonimmigrant H, L or K visa at a U.S. embassy or consulate.

Certain eligible foreign nationals that are subject to the two-year J-1 home-country requirement may apply to the Department of State, Waiver Review Division for a recommendation that USCIS grant a waiver under any one of the five applicable bases set forth in U.S. immigration law. To be eligible for a J-1 waiver, one of the following bases for recommendation of a waiver must apply:

No Objection Statement

Request by an Interested U.S. Federal Government Agency

Persecution

Exceptional Hardship to a U.S. citizen (or lawful permanent resident) spouse or child of an exchange visitor

Request by a designated State Public Health Department or its equivalent (Conrad State 30 Program)

Allows foreign nationals to work in the US for an employer that is related to or affiliated with a foreign company.

The applicant must have worked for the foreign company prior to entering the US.

The L-1 classification also enables a foreign company for at least one year which does not yet have an affiliated U.S. office to send an executive or manager, or a professional employee with specialized knowledge to the United States for purposes of establishing one.

Spouses and unmarried children of L-1 holders may obtain L-2 status.

L-1A visa allows a U.S. employer to transfer an executive or manager from one of its affiliated foreign offices to one of its offices in the United States.

L-1B visa allows a U.S. employer to transfer a professional employee with specialized knowledge relating to the organization’s interests from one of its affiliated foreign offices to one of its offices in the United States.

Applies to foreign nationals who possess extraordinary ability in the sciences, arts, education, business, or athletics and have been recognized nationally or internationally for those achievements, are eligible for an O visa.

The O-visa classification may be divided as follows:

O-1A: individuals with an extraordinary ability in the sciences, education, business, or athletics (not including the arts, motion pictures or television industry).

O-1B: individuals with an extraordinary ability in the arts or extraordinary achievement in motion picture or television industry.

O-2: individuals who will accompany an O-1, artist or athlete, to assist in a specific event or performance.

P-1A category: applies to athletes who perform at a specific athletic competition, individually or as part of a group or team, at an internationally recognized level of performance.

P-1B classification: applies to aliens who perform as a member (or are an integral and essential part of the performance) of an entertainment group that has been recognized internationally as “outstanding” for a “sustained and substantial period of time.”

P-2 Visa:

Applies to foreign nationals seeking to temporarily perform as an artist or entertainer in the U.S., individually or as part of a group, under a reciprocal exchange program between an organization in the United States and an organization in another country.

The foreign national must be an artist entering the U.S. through a government recognized reciprocal exchange program and must also possess skills comparable to those of U.S. artists and entertainers taking part in the program outside the United States.

P-3 Visa:

Applies to foreign nationals seeking to enter the U.S. to temporarily perform, teach, or coach as artists or entertainers, individually or as part of a group, under a program that is culturally unique.

To be eligible, the foreign national must seek to enter the U.S. either individually or as a group for the purpose of developing, interpreting, representing, coaching, or teaching a unique or traditional ethnic, folk, cultural, musical, theatrical, or artistic performance or presentation.

The foreign national must be coming to the United States to participate in a cultural event or events which will further the understanding or development of their culture. The program may be of a commercial or noncommercial nature.

Q - Exchange Visas
This temporary/nonimmigrant visa classification applies to foreign nationals seeking to participate in an international cultural exchange program. The purpose of the Q nonimmigrant exchange program is to provide practical training and employment, as well as to share the history, culture, and traditions of the foreign national's home country with the U.S.

TN – NAFTA Professionals
Pursuant to the North American Free Trade Agreement (NAFTA), TN nonimmigrant classification allows qualified Canadian and Mexican citizens to seek temporary entry into the U.S. to engage in business activities at a professional level.

PERMANENT RESIDENCE

PERM

This is the first step in the employment-based permanent residence process for most cases.

In EB-2 and EB-3 cases (the PERM process does not apply in EB-1 cases), the U.S. employer must obtain an approved labor certification request from the Department of Labor’s (DOL) Employment and Training Administration (ETA).

The PERM process includes a recruitment period, where the employer tests the U.S. market to satisfy the first requirement. The DOL must certify to the USCIS that:

There are no qualified U.S. workers able, willing, qualified and available to accept the job at the prevailing wage for the particular occupation in the area of intended employment; and

That employment of the alien will not adversely affect the wages and working conditions of similarly employed U.S. workers.

This category applies to foreign nationals who demonstrate extraordinary ability in the sciences, arts, education, business, or athletics through sustained national or international acclaim. No offer of employment is required.

Outstanding Researcher

This category applies to foreign nationals who demonstrate international recognition for outstanding achievements in a particular academic field.

Multinational Manager/Executive

This category applies to foreign nationals who have been employed outside the United States in the three years preceding the petition for at least one year by a firm or corporation and who are seeking to enter the United States to continue service to that particular firm or organization. The foreign national’s employment must have been outside the United States in a managerial or executive capacity and with the same employer, an affiliate, or a subsidiary of the employer.

This classification applies to foreign nationals who can demonstrate exceptional ability in the sciences, arts, or business. Exceptional ability “means a degree of expertise significantly above that ordinarily encountered in the sciences, arts, or business.”

Advanced degree professionals

This classification applies to foreign nationals who have received a permanent full-time job offer from a U.S. employer for a position that requires an advanced degree. The foreign national must possess the required advanced degree or its equivalent (a baccalaureate degree plus 5 years work experience). This classification also requires an approved Labor Certification from the Department of Labor, which indicates that there are no qualified U.S. workers available for the position (see PERM).

National Interest Waiver

National interest waivers are usually granted to those who have exceptional ability (see above) and whose employment in the United States would greatly benefit the national. Those seeking a national interest waiver may self-petition (they do not need an employer to sponsor them) and may file their labor certification directly with USCIS along with their Petition for Immigrant Visa.

This classification applies to foreign nationals who have received a permanent full-time job offer from a U.S. employer for a position that normally requires at least a U.S. baccalaureate degree or foreign equivalent. The foreign national must possess the required U.S. baccalaureate degree. This classification also requires an approved Labor Certification from the Department of Labor, which indicates that there are no qualified U.S. workers available for the position. (see PERM)

Skilled Workers

This classification applies to foreign nationals who have received a permanent full-time job offer from a U.S. employer for a position that requires at least two years of certain experience/skills. The foreign national must possess at least 2 years of job experience or training. This classification also requires an approved Labor Certification from the Department of Labor, which indicates that there are no qualified U.S. workers available for the position.

Unskilled Workers

This classification applies to foreign nationals who have received a permanent full-time job offer from a U.S. employer for a position that requires unskilled labor,( labor requiring less than two years training or experience) that is not of a temporary or seasonal nature, for which qualified workers are not available in the U.S. The foreign national must be able to demonstrate that at the time the petition is filed he/she is capable of performing unskilled labor (requiring less that 2 years training or experience) not temporary or seasonal in nature. This classification requires an approved Labor Certification from the Department of Labor, which indicates that there are no qualified U.S. workers available for the position.